State Bank of India vs M.S Quality Print City And Others on 24 February 2020

**J U D G M E N T**

**(Delivered on 24^th February 2020)**

The Applicant is a body corporation, constituted under the provisions of State Bank of India Act, 1955, having its Central Office at Madam Cama Road, Mumbai – 400021 and carrying on business through its different branches including one at Cooch Behar, known as 'Cooch Behar Bazar Branch', N.N. Road, Cooch Behar, P.O. Cooch Behar, P.S. Kotowali, District-Cooch Behar, Pin – 736101, West Bengal.

The facts in brief, giving rise to the present application as pleaded are as under.

The defendants No. 2 & 3 as partners of the defendant No.1 applied to the applicant bank for Term Loan of a sum of Rs. 18.00 lakhs for purchase of machinery for the Printing Press business of the defendant No.1 vide Application dated 24/8/2012 and the applicant bank in consideration of the said application sanctioned a Term Loan of Rs. 18.00 lakhs in favour of the defendant No.1 vide Letter of Arrangement dated 1/10/2012.

In acknowledgment of grant of the said facility, the defendants No.2 & 3 executed One Agreement of Loan-cum-Hypothecation on 1/10/2012 in favour of the applicant bank.

(Contd...)

Siliguri

The defendants No.2 & 3 in their personal capacity stood as guarantors and executed a Guarantee Agreement dated 1/10/2012.

The applicant allowed the defendant No.1 to avail of the said Term Loan of Rs. 18,00,000/- and accordingly the defendant No.1 availed of the said Term Loan of Rs. 18,00,000/- by opening a Term Loan Account at the said Branch of the applicant in the name of the defendant No.1.

It is the contention of the applicant bank that after availment of the above stated loan facility, the loan account became most irregular and inspite of requests and reminders, the defendants failed and neglected to keep regularized the said account and also failed and neglected to repay the dues of the said loan account as per the terms and conditions thereof, as a result of which, the account was classified as NPA.

The applicant bank submitted that the defendant No.1 in almost every year after sanction of loan made some deposits in the loan account and the last payment was made on 10/10/2014 in the said account.

As the loan account became irregular the applicant bank through its Advocate issued Demand Notices on 14/1/2015 to the defendants.

According to the applicant bank, after giving credit for all sum of moneys paid by and on behalf of the defendants in the said loan account there becomes due from the defendants to the Applicant Bank altogether a sum of Rs. 14,38,571.00 with interest calculated upto 24/11/2014.

After transfer of the case from DRT-2 Kolkata to this Tribunal, the defendants neither appeared nor filed any written statement against the claim of the applicant bank despite the service of summons through postal service. Hence, the matter is proceeding ex-parte against the defendants vide order dated 7/9/2018.

The Applicant Bank in support of its case has filed evidence by way of affidavit as affirmed by Sri. Dharmendra Kumar, the Branch Manager of the applicant bank and also relied upon the following documents:- <table border="1"> <thead> <tr> <th>Sl. No.</th> <th>Name of the documents</th> <th>Exhibit No.</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Application dated 24/8/2012</td> <td>1</td> </tr> <tr> <td>2.</td> <td>Letter of Arrangement dated 1/10/2012</td> <td>2</td> </tr> <tr> <td>3.</td> <td>Agreement of Loan-cum-Hypothecation dated 1/10/2012</td> <td>3</td> </tr> <tr> <td>4.</td> <td>Guarantee Agreement dated 1/10/2012</td> <td>4</td> </tr> </tbody> </table>

Siliguri

(Contd...)

<table border="1"> <tr> <td>5.</td> <td>Demand Notice dated 14/1/2015 along with postal receipts and A/D cards</td> <td>5,6, 7, 8, 9 &amp; 10</td> </tr> <tr> <td>6.</td> <td>Statement of account</td> <td>11</td> </tr> <tr> <td>7.</td> <td>Certificate as per Banker's Books of Evidence</td> <td>12</td> </tr> </table>

I have heard the learned counsel for the applicant bank and perused the documents and Evidence filed by applicant bank. By the said evidence on affidavit, the Applicant bank has proved its claim. It is settled law that an averment which is not denied by the opposite party i.e. defendants in the present matter, by way of filing written statement or by producing evidence must be taken by the Tribunal/ Court to have admitted by the defendants. In the present matter the defendants have neither filed the written statement nor produced any evidence in his support to challenge the claim of applicant bank.

The claim of the Applicant bank is within the limitation and within the jurisdiction of this Tribunal. The applicant has sufficient cause of action for filing the instant application due to disbursement/availment of loan to/by the defendants and on default in repayment of the loan by the defendants, in spite of demands made, as per exhibited documents filed by the applicant bank.

In the above circumstances, it is ordered:

ORDER

T.O.A. No. 218/2017 arising out of O.A. No. 31/2015 filed by the Applicant Bank is allowed against the defendants No. 1, 2 & 3 jointly and severally and it is hereby ordered that the Applicant Bank is entitled to recover from the above said defendants the total debt amount for Rs.14,38,571.00 (Rupees fourteen lakhs thirty eight thousand five hundred and seventy one) only with further interest thereon @12.00%.p.a. with quarterly rests from the date of filing of the application till realization of entire balance.

Amount, if any, paid by the defendants in the loan accounts or amount recovered by the applicant bank, if any, made towards the loan accounts after filing of the O.A be taken into account while arriving at the exact amount of outstanding payable by the defendants.

The hypothecated property being stocks-in-trade, all plants and machineries, tools, furniture & fixtures, book debts etc. lying at M/s Quality Print City at 30/1, S.N. Road, Badur Bagan, Cooch Behar, Post Office Cooch Behar, Police Station Kotowali, District- Cooch Behar,

Siliguri

(Contd...)

Pin – 736101, as given in the Schedule-X of the application, shall remain charged to the Applicant Bank and the Applicant Bank shall have paramount charge thereon.

The defendants are debarred from transferring; alienating, encumbering or disposing of the hypothecated/mortgaged properties or any other property and assets belonging to the defendants till the aforesaid adjudicated debt amount is recovered from the defendants.

The defendants are given a time of thirty days from the date of this judgment/final order for repayment of the above mentioned dues, so initiated to them. In case of failure of said defendants to pay the dues within the time as aforesaid, the Applicant Bank is entitled to recover its dues by sale of the hypothecated/mortgaged property and is also entitled to proceed against the said defendants personally and/or personal properties to recover the dues in accordance with law.

Let the certificate of Recovery be drawn up by Learned Registrar forthwith in terms of judgment for issuance of the same against the defendants in favour of Applicant Bank under Sub-Section 7 and 22 of Section-19 of The Recovery of Debts and Bankruptcy Act, 1993 and put up the same for signature for issuance.

This judgment is signed and pronounced in the open Tribunal on this day the 24^th day of February, 2020.

Copy of the judgment/final order be given/sent to the parties.

**(D.S. MAHRA)** **Presiding Officer** **DRT, Siliguri.**

**Presiding Officer** **Debts Recovery Tribunal** **Siliguri**